Employee Participation in Employee Assistance Programs

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By Barbara Haga

We recently had an inquiry from a reader about whether there is ever a time when a supervisor could legally direct an employee to seek Employee Assistance Program (EAP) services.  This brought up a number of issues and considerations that seemed like a good topic to address in the next few columns.

Background

5 USC 7901 authorizes agencies to create a health services program to promote and maintain the physical and mental fitness of employees.  The law, originally enacted in 1966, did not require such programs but authorized agencies to create them and operate them with appropriated funds.

OPM has identified a number of other laws, Executive Orders, and regulations that have addressed certain kinds of specific coverage on the EAP page of the OPM website:  (https://www.opm.gov/policy-data-oversight/worklife/employee-assistance-programs/#url=Guidance-Legislation).  Most of these additions are focused on drug and alcohol issues:

  • Public Law 99-570 (5 USC 7361 and 7362), The Federal Employee Substance Abuse Education and Treatment Act of 1986, and 5 CFR 792 require Federal agencies to establish appropriate prevention, treatment, and rehabilitative programs and services for alcohol and drug abuse problems for Federal civilian employees.
  • Public Laws 96-180 and 96-181 authorize agencies to extend counseling services, to the extent feasible, to family members of employees who have alcohol and drug problems, and to employees with family members who have substance abuse problems.
  • Public Law 79-658 authorizes the head of agency to establish health services programs for employees, also forms the basis for expanding counseling programs from those dealing solely with substance abuse to broad range programs which provide counseling for other personal problems, e.g., family, financial, marital, etc.
  • Executive Order 12564 requires agencies to establish a Drug-free Federal Workplace Program (DFWP), including an EAP as an essential element in achieving a drug-free workforce.

EAPs are voluntary, confidential programs that provide counseling and assessment to employees whose work performance and conduct are being affected by covered issues.

Mandatory Referral or Directed Participation?

There is a difference between mandatory referral to an EAP and requiring an employee to actually participate.  Referral requirements are common as discussed below. There is nothing I have found in my experience that would allow management to make an employee participate.  Even if you could, the information is still protected, so unless the employee consented to release, you still wouldn’t have what you would wanted.  Unfortunately, our laws and employment practices protect employees’ rights not to take care of themselves and not to take prescribed medication and not to take advantage of services and/or medical care that are offered with the best of intentions.

Mandatory referral is quite another thing.  We include the information in a notice or have a supervisor advise an employee that he or she is being referred.  Sometimes that includes an appointment that has already been set up with directions of where to go.  Mandatory referral may arise in these situations:

Federal Drug-Free Workplace Program (DFWP).  Section 2(b) of EO 12564 signed by President Reagan on September 17, 1986 included provisions regarding use of employee assistance for counseling and supervisory referrals for rehabilitation.  http://www.samhsa.gov/sites/default/files/executive_order.pdf. The model Federal agency plan issued by Substance Abuse and Mental Health Services Administration (SAMHSA) is available at this link: http://www.samhsa.gov/sites/default/files/workplace/ModelPlan508.pdf.  The plan states on p. 12 that “Any employee found to be using drugs shall be referred to the EAP.”

Collective Bargaining Agreements.  It is common that language has been negotiated in union contracts which requires management to make referrals in certain situations.  I would surmise that the union’s goal is to get the employee into an EAP program at the earliest possible time thus minimizing the possibility of some kind of performance or conduct action being initiated/effected.  Of course, with such referrals being included in the agreement, if that step is missed there is an issue of failure to live up to the terms of the agreement which would likely arise in any ensuing grievance or appeal.

Agency Directives.  Some agency policies include requirements for including EAP referrals in certain circumstances and/or in conjunction with disciplinary actions.  An agency could require referral if an employee is found to be in possession of alcohol on duty or under the influence of alcohol on duty.  There may be requirements for referral when there are altercations in the workplace or other similar issues.  Some agency policies build in a requirement to include EAP referral information in proposed disciplinary notices.

Mandatory Referral or Creative use of Referrals?

While we may not be able to make a mandatory referral, we can be creative in trying to ensure that an employee actually participates.  Once when working on a disciplinary case regarding an employee who was struggling with emotional illness issues, I arranged for the EAP counselor to be in a conference room down the hall while the disciplinary letter was being delivered.  The letter gave the referral information and said we had someone available to speak with her right then.  When the manager finished his part of the meeting, I asked the employee if she would be willing to talk to the counselor and she said she would, so I walked her down to the conference room.  I can’t recall what eventually happened with that case, but I distinctly remember that the employee seemed surprised that someone was immediately available and was grateful to have a chance to talk to someone.

EAP is one place where management’s and union’s goals are more closely aligned than many other areas.  The goal is to help an employee solve a problem and remain a productive member of the workforce.  If you have the kind of relationship with a union representative that would allow this, you could try to present a coordinated front in a meeting with both management and union there.  The manager would say that he or she needs to deal with the situation but sees that the employee seems to be struggling with something that is coming to work with them from home.  Management doesn’t want to have to initiate discipline if the employee will take steps to deal with the underlying issue.  Have the union official there to talk about the program and hopefully that it has helped other people and that the employee should try and see if it could be of assistance.  Perhaps the union official could be the one to escort employees to where they need to go or to sit with them as they dial in to FOH or some other service.

One thing about getting the union to join in is that they can talk to an employee in a way that management can’t. They can tell the employee in frank terms that the last person who had these kinds of issues ended up getting fired, or better yet, that the last person who had these kinds of issues got themselves straightened out and made a comeback and is still working there.  If management said that the last person got fired it might come across as a threat – but when the union does it, they are helping! It’s something to think about. Haga@FELTG.com

Vehicle Misuse, Wile E. Coyote, and Settlement Agreements

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By Barbara Haga

If only our business had a list of rules that would always produce a successful result.  If the MSPB had a checklist (for example, like a pilot has) of things that always had to be followed to ensure your case would be sustained, we would have many more practitioners ready to take on adverse actions, fewer hours of lost sleep over whether everything had been covered, and probably a need for far fewer FELTG classes and newsletters. [Editor’s Note: Of course, that would be a BAD outcome.]

But alas, it isn’t that simple.  As I was preparing this column I reread the last one (it helps me avoid repeating myself).  Reading about poor Mr. Hoofman, the Army Construction Rep who managed to get his government vehicle stranded on the sand pile, made me think of Wile E. Coyote.

Like Wile E. Coyote, Hoofman tried several different things to get that car back on the road, and unfortunately the efforts became more damaging to his long term career prospects as he went.  First, he tried to rock it back and forth by switching the gears from forward to reverse.  Then he walked to his apartment for liquid fortification.  Later he walked back to the car and picked up two strangers along the way to help.  The three of them were all in the vehicle and apparently again tried to rock it back and forth.  Their efforts were unsuccessful and then the police arrived and you know the rest if you read the article or the case.  (Hoofman v. Department of the Army, 2012 MSPB 107).

Looney Tunes had a list of rules for making Road Runner and Wile E. Coyote cartoons.  You may read the full list here:  http://time.com/3735089/wile-e-coyote-road-runner/.  The universe for those two characters operated within certain principles:

Rule 1: The Road Runner cannot harm the coyote except by going “beep-beep.”

Rule 2: No outside force can harm the coyote—only his own ineptitude or the failure of the Acme products.

Rule 3: The Coyote could stop anytime—if he were not a fanatic.

Rule 9: The coyote is always more humiliated than harmed by his failures.

And Rule 9 leads us to our next case.  Only this time it wasn’t Wile E. Coyote who was humiliated, it was a Federal agency.

Settlement Agreements Have to be Lawful

This could be Rule 9 on the Board’s list of rules.  It seems so basic.  Sometimes we worry about things like language that is unclear – like exactly what was that clean record going to include and not include.  We have to be ready to answer whether the person had time to consider the provisions of the agreement, whether they were represented, etc. to avoid anything that would look like duress or coercion.  Obviously, agreements cannot be upheld if there is fraud involved by either party.

Occasionally there is an issue of a potentially unconscionable agreement: those agreements that are so one-sided that a court or the Board won’t enforce their provisions.  You know, when one side, in our world usually management, is holding most of the cards.  Many years ago we had a Navy practitioner who got a little carried away in writing a last chance agreement and he added a provision that if the employee attempted to file an appeal with the Board later out of any alleged violation of the agreement he had to pay the Navy’s costs to defend it.  The Administrative Judge was none too amused with that one.  That was my first exposure to the term “unconscionable.”

There is another issue with settlement agreements.  They have to comply with other relevant statutes, and that leads us to Ross v. Department of Homeland Security, DA-0752-15-0521-I-1 (2016) (NP).  This non-precedential decision issued on June 24th is hot off the press.

Statutory Penalty for Willful Misuse

DHS suspended Ross for 30 days for misuse of a government vehicle.  The charge was “Willful misuse of a Government vehicle for nonofficial purposes in violation of 31 USC 1349(b).”

Ross appealed and the parties settled.  The agency agreed to rescind the 30-day suspension and substitute a 5-day suspension, and Ross agreed to withdraw the appeal.  He later challenged the agreement in an appeal to the Board regarding one provision of the agreement relating to his leave status for a period of time relevant to the case.  The Board never got far enough to look at that, however, because they found the agreement “not lawful on its face.”

The problem was the charge.  With that charge Title 31 requires a minimum 30-day suspension.  There is no provision for anything less.  By leaving the charge intact, DHS was unable to agree to a 5-day suspension.  The settlement should have created a new charge, perhaps inappropriate conduct or failure to follow agency procedure, to avoid this problem.

This understanding of the minimum penalty required has worked to management’s favor in other cases.  In Fields v. Veterans Administration, 21 MSPR 176 (1984), there were numerous charges in the 30-day suspension, some of which were patient abuse, misuse of a government ID, willfully falsifying government records, and intentional unauthorized use of a government vehicle for other than official purposes.  The AJ did not sustain most of the charges, but did sustain two – one of which was the intentional unauthorized use of the vehicle.  Because not all of the charges were sustained, the AJ mitigated the penalty to a 14-day suspension.  The agency petitioned for review and the Board sustained the 30-day suspension because of the Title 31 provision, writing, “Since the statute imposes a mandatory minimum penalty for appellant’s offense, the Board lacks authority to reduce the penalty below a thirty-day suspension.”

Mutual Mistake

Mutual mistakes have been found in other agreements.  In Farrell v. Interior, 86 MSPR 384 (2000), the settlement agreement provided for payment of overtime hours at a rate that was contrary to law and thus had to be set aside.  In Shipp v. Army, 61 MSPR 415 (1994), the agreement set a fixed amount of back pay with deductions only for taxes; the amount of back pay calculated did not take into account that the employee had received wages for another position during the relevant time frame so that amount had to be deducted.  For the agency to pay the full amount would have violated the Back Pay Act.  In Miller v. Department of Defense, 45 MSPR 263 (1990), the Board set aside a settlement agreement that provided for a year of administrative leave based on a Comptroller General advisory opinion which provide that the use of administrative leave to provide prospective compensation and benefits in the settlement of an appeal was lawful under the circumstances.

The Board found that the settlement agreement for Ross which allowed for a 5-day suspension was also invalid based on a mutual mistake.  The appeal was remanded for reinstatement of Ross’ appeal, so DHS would have to defend the 30-day suspension for willful misuse absent a new settlement agreement.  [Editor’s Note: Even more reasons never to charge Willful Misuse of a GOV, as we teach in the FELTG MSPB Law Week; too much trouble for no real benefit.]

With this, I am wrapping up the topic of vehicle misuse.  So, that’s all folks! Haga@FELTG.com

Stranded on a Sand Pile: Vehicle Misuse – Charges Sustained

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By Barbara Haga

In the past two columns we reviewed cases where misuse of the government vehicle was not sustained.  This month we will look at a case where the Board, and the Federal Circuit, upheld the disciplinary action.

Stranded on a Sand Pile

This case is relatively recent and has been discussed in some MSPB updates at training events that I have attended.  But, the journey to a sustained removal was a difficult one for the Army, and the facts are so intriguing.

The details of the events and the charges are contained in the Board’s decision Hoofman v. Department of the Army, SF-0752-11-0266-I-1 (2012).  The Federal Circuit sustained the Board’s ruling in a non-precedential decision titled Hoofman v. Department of the Army, 2013-3029 (Fed. Cir. 2013).  Hoofman was a Construction Control Representative with the U.S. Army Engineer District in Anchorage, Alaska.  Late one night, Hoofman was driving home in a government vehicle when, through a chain of events that are not quite clear, he stranded the vehicle on top of a sand pile.

He tried to free the vehicle from the sand pile by switching the gears back and forth but was unsuccessful.  In a statement, Hoofman gave an account of what had happened.  He said he was driving alone and had not been drinking when the car became stuck.  When he could not get the vehicle off the sand pile, he walked to his apartment nearby.  He admitted that he consumed alcohol at the apartment.  At about 1:00 a.m. he was walking back to the truck and met two individuals and asked for their assistance to get his truck unstuck.  The two agreed to help if Hoofman would give them a ride afterwards, to which he agreed.  They could not get the vehicle unstuck.  Hoofman could not recall when the two individuals got into the vehicle.

The police arrived at the scene at around 1:30 a.m. and observed the vehicle, Hoofman, and two other passengers inside the stranded vehicle. Hoofman refused to submit to a chemical breath test.  The next day Hoofman pled guilty to a charge of Refusal of Breath Test, which resulted in the Alaska court revoking his driver’s license, requiring him to use an ignition interlock system and to spend time in jail. The following morning, he contacted his supervisor and requested two weeks of leave due to personal family reasons, but at that point did not tell his supervisor about stranding the government vehicle, the fact that it was impounded, or his arrest.  That information was not disclosed until he returned to work nearly two weeks later.

The agency removed Hoofman based on four charges:

  • Charge 1: Driving a government vehicle while under the influence of alcohol
  • Charge 2: Using a government vehicle for other than official purposes
  • Charge 3: Loss of his driver’s license for one year and having to use an ignition interlock device for one year after regaining the privilege to drive
  • Charge 4: Attempting to deceive his supervisor.

The Board’s decision noted that Hoofman’s job required him to travel to remote places and to work independently.

In a surprising twist, the AJ did not sustain any of the four charges.  The agency used an affidavit from the charging officer who responded to the scene to address charges one and two, and the AJ ruled that that was hearsay and had little probative value and did not sustain those charges.  The AJ did not find Hoofman’s request for leave for family reasons as a deception; she ruled that it did not meet the definition of “deceive” and that Hoofman did not personally gain from not providing the information after the vehicle and his arrest when he contacted his supervisor about the leave.  The AJ found that, although Hoofman’s license was “revoked” for one year, he did not “lose” his license for one year as charged by the agency because the appellant held a valid driver’s license, albeit one limited to driving with the interlock system, within approximately five months of the incident.

It seems that the AJ made some unusual rulings in this case, but there is a lesson to be learned about properly writing charges in this case.  The agency petition for review only challenged the rulings on three of the four charges.  The Army did not challenge the AJ’s decision on the charge regarding loss of the driver’s license.  Charging loss of the license for one year and adding in the use of the ignition device made the charge complicated beyond what was necessary to show that he would not be able to drive for work purposes.

The MSPB overruled the AJ and sustained Charges 1 and 2 based on admissions made by the employee.  The Board relied on the definition of driving under the influence as defined in Alaska’s statute.  The key factor here was that Alaska’s courts had defined the term “operate” a vehicle to mean more than driving the vehicle, but the actual physical control of a vehicle with the motor running.  The Board noted that this definition did not require that the vehicle be capable of movement.  Hoofman did not dispute that he was in the driver’s seat with the engine running when the officer responded. He also admitted that he attempted to remove the vehicle from the sand pile after he had been drinking by engaging the drive and reverse gears.  The MSPB also found that there was ample evidence that the employee was under the influence of alcohol based on the fact that he admitted that he had been drinking and declined to take a breathalyzer test. The Board also relied on the charging police officer’s affidavit, which noted that the appellant had bloodshot and watery eyes, slurred speech, a swaying stance, and a strong odor of consumed alcohol.

Charge 2 regarding use for unofficial purposes was supported because Hoofman acknowledged that he offered to give a ride to two unidentified individuals in exchange for their assisting him in removing the vehicle from the sand pile. The Board noted that the fact that he was unable to free the vehicle from the sand pile and complete the unauthorized trip did not disprove the charge.

The Board also found Charge 4 was supported because the AJ misconstrued the agency’s charge.  The AJ likened the charge of attempting to deceive the supervisor as a falsification charge, but the Board found it more similar to a lack of candor charge.  The decision states, “We find that the appellant should have told his supervisor about his arrest and the impounding of his government-owned vehicle in order to make his stated reason for requesting leave ‘accurate and complete.’”  The Board also found that although Hoofman eventually told his supervisor about the incident before the supervisor could find out for himself did not change the fact that the appellant had concealed the matter from him for nearly two weeks.

Based on the three charges the Board sustained the removal, and in a brief decision, the Federal Circuit supported the Board’s ruling.

Haga@FELTG.com

Vehicle Misuse

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By Barbara Haga

Last newsletter, we looked at a case where the supervisor authorized an employee to use a government vehicle for something unofficial, and the supervisor was disciplined for the authorization.  This time we are looking at a case where the use was not authorized by any official within the agency.  Here the administrative judge (AJ) did not sustain the charge, but the Board reversed and then, the Federal Circuit overturned the Board’s decision.

It was a Really Good Reason

Here is the story behind the case.  The appellant, Kevin Kimm, was a GS-13 Criminal Investigator with ATF.  According to the Federal Circuit decision, he was a highly decorated investigator.  The events in question happened during August of 1992.

His wife was pregnant.  She had suffered previous miscarriages and was having contractions roughly two months before her due date.  During the first week of August, his wife’s doctor ordered her to avoid all stressful activity, but then revised the order on Tuesday of the following week ordering her to remain on bed rest at all times.  The Kimms were the parents of a three-year-old son.  Normally, the mother transported the son to day care but after the change in the doctor’s orders, she was not able to do this.

Kimm transported his son to and from day care three or four times during the first week that his wife was on bed rest.  Her parents arrived and took care of that thereafter.  The deviation in his route to go by the day care center was 2.6 miles each way.  If you do the math, making this deviation twice a day four times a week resulted in about 21 miles of extra driving.  Assuming he was driving a big SUV, we are talking maybe two gallons of gas used.  But, I digress.

It is not clear in the decision how the issue came up, but ATF learned about this.  In the ensuing investigation Kimm admitted that he had used the vehicle for this purpose.  He stated that he thought he was maximizing the use of his time in using his assigned government vehicle (GOV) during the period where he was working a lot of overtime and involved in a dangerous investigation.  He also noted that being in the vehicle meant that he could be available on the encrypted radio and making the detour in the GOV would allow him to get to work much faster since using a personal vehicle and returning home and then getting in the GOV would have resulted in a 40-minute delay because of heavy commuter traffic.

The ATF charged Kimm with “willful use of a GOV for other than official purposes” and suspended him for 30 days.

The Initial and Board Decisions 

The AJ decided that the suspension was not warranted, finding “… that the appellant had a good faith belief that he had the discretion to rectify a family emergency and simultaneously maximize the time that he was available to perform his agency functions, and that his belief was not in reckless disregard of the agency’s regulations.”  The AJ also found that the use was “minor personal use.”

The Board took a different perspective relying on the specificity of the agency’s directive regarding use of official vehicles.  In this case the directive was very specific to the use in connection with law enforcement activities.  The directive said that the use of the vehicle to carry an individual only if it was “… deemed essential to completion of the official mission.”  Those circumstances were further explained as follows:

Determining whether the transportation of a particular person is essential to the success of the mission demands the exercise of good judgment which will be guided by the following rules: 1) Transportation is not to be furnished to anyone unless the vehicle is being used on an official mission and the presence in the vehicle of each person transported is essential to the completion of the mission. 2) When foreseeable arrests and seizures are to be made, no private person will be transported in a Government vehicle unless there is an emergency and the help of such person is necessary for the protection of the special agent engaged in these activities.

The agency further explained in another document that family members and Bureau employees were not deemed essential.  The agency did provide that deviations could be authorized by a special agent in charge or higher official.  Kimm did not request such authorization.

The Board did not accept Kimm’s explanation that he was making the most efficient use of his and the agency’s time nor was the use judged to be minor personal use.  The Board reinstated the 30-day suspension.  (Kimm v. Treasury, 64 MSPR 198, 1994)

The Federal Circuit’s Take

The Federal Circuit’s decision records matters to which the appellant testified.  Kimm’s answers included the information about the deviation of a total of roughly 21 miles and his reasoning that saving 40 minutes each day while he was essentially on an around-the-clock investigation.  He also testified that there was room under the regulations for minor deviations.  “He testified that it was standard practice, for example, to make minor deviations to find a place to eat dinner while on a mission, or to alter one’s route to and from the office, if a death threat had been received. He also testified that the agency was lax in the enforcement of its GOV regulations, and cited a number of incidents that he believed had occurred to support this belief.”

The Federal Circuit found that the AJ’s determination that Kimm did not have actual knowledge that the agency would find the use as nonofficial was persuasive based on the appellant’s straightforward testimony and an improbable case put on by the agency.  The Federal Circuit ruled that the MSPB did not articulate a reason for finding otherwise.  The Federal Circuit also found that the agency policy left room for judgment by an employee about official use and determined that Kimm properly exercise that judgment.  Kimm v. Department of the Treasury, 61 F.3d 888 (Fed. Cir. 1995).

The Federal Circuit did not find reckless disregard in this case nor was it found in the Felton case reviewed last month.  There was unofficial use of a vehicle in both cases, but the per se violations did not meet the requirements for imposing the statutory penalty contained in 31 USC 1349.  Word to the wise! [Editor’s note: Another word to the wise. Never, ever suspend for 30 days under 31 USC 1349. It does the agency no good, locks the management advocate into satisfying the statutory definition of GOV misuse, and requires that the agency defend its action before MSPB. As we have taught for over a decade in out FELTG seminars, the best practice in a situation like this is to charge “Unauthorized Use of Government Property” or the generic “Violation of Agency Procedures” and suspend for 14 days or fewer to avoid MSPB. Had that been done here, Treasury would have won this case.] Haga@FELTG.com

More Use and Misuse – Vehicles

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By Barbara Haga

I am sure that most readers are generally familiar with the statutory penalties associated with misuse of government vehicles.  I thought that a look at some cases that involve that charge and related forms of misuse might be a good topic to explore.  There are lessons here about careful crafting of charges.

The Basics

The statutory penalty appears in 31 USC 1349.  Enacted in 1982, the relevant sections include the following:

  •  1349. Adverse personnel actions

(b) An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle or aircraft owned or leased by the United States Government (except for an official purpose authorized by section 1344 of this title ) or otherwise violates section 1344 shall be suspended without pay by the head of the agency. The officer or employee shall be suspended for at least one month, and when circumstances warrant, for a longer period or summarily removed from office.

(§ 1344 discusses when passenger vehicles may be used for transportation for a government employee from the residence to the place of employment and other related usage such as travel to a transportation terminal).

We will look at two Federal Circuit cases which outline what is required to establish willful use and reckless disregard, or actually in these two cases what didn’t establish those things.  These cases look at two different scenarios – one when an employee was authorized by a supervisor to use the vehicle and then the supervisor was disciplined and one when the employee used the vehicle assigned to him for a purpose judged to be unofficial.

Supervisor Authorizing Employee to use Vehicle

The case is Felton v. Equal Employment Opportunity Commission, 820 F.2d 391 (Fed. Cir. 1987). Felton was the acting Area Office Director of an EEOC Regional Office.  A clerical staff member’s car broke down on the expressway on the way to work.  She got a ride to work and subsequently asked Felton to use the office’s government vehicle to return to the car to secure it before it was towed for service.  Felton approved use of the vehicle and was suspended for 30 days thereafter.  She testified in her appeal that she authorized the use of the vehicle because the employee was the only typist, there was a large backlog at the time, and that use of the vehicle allowed resolution of the problem with the vehicle in the most expeditious means possible.  The AJ found that the Felton knowingly, consciously, and willfully authorized the use of the vehicle for other than an official purpose and sustained the suspension.  The full Board denied the petition for review and Felton challenged the action at the Federal Circuit.

The Court reversed the suspension, finding that there was no evidence to support a finding that Felton knew or should have known that the use of the vehicle in the circumstance of this case would be held to constitute use for a nonofficial purpose or that she acted in reckless disregard of whether the use was or was not for an official purpose.  The analysis included examination of both points.

The decision explains how “willful” should be reviewed.  The Court wrote:

Had the word “willful” been omitted from the statute, the statute would apply to any authorization for any nonofficial purpose. It would have made all unwitting, inadvertent and unintended authorizations for nonofficial use a violation of the statute. See Morissette v. United States, 342 U.S. 246, 270 (1952). Such is not the case here. That Felton’s authorization was a conscious and intentional act was admitted, but a knowing authorization of an unofficial use requires more than mere intent to do the act which lays the foundation for the charge. The requirement of knowledge applies to the unofficial nature of the use as well to the authorization. She knew and intended to authorize the use, but there is no evidence that she actually knew that the use would be characterized as “nonofficial.”

The Court also found that Felton’s authorization was not in reckless disregard of whether the use was for other than official purposes.  In this they reviewed the content of the EEOC order on use of motor vehicles.  The policy stated: “What constitutes official purposes is a matter of administrative discretion to be exercised within applicable laws. The general rule may be stated that where transportation is essential to the successful operation of an authorized agency purpose, such transportation will be considered as official use.”  The Court found it reasonable that Felton could conclude that that the use authorized in this case would promote the successful operation of the agency.

What the Court did find was that Felton made a poor management choice.  The AJ outlined other options Felton had, such as denying use of the vehicle and leave for the purpose of going back to the vehicle.  The AJ relied on these management alternatives to support a finding that the decision was made in reckless disregard of whether the use was official.  The Court’s decision takes the opposite approach.  The Court found that Felton’s testimony made it clear that she acted in good faith in attempting to solve an office emergency.  The decision states, “Poor management judgment in selecting an alternative to solve an office emergency does not rise to the level of ‘reckless disregard.’”  [Editor’s Note: And why any agency would ever charge willful misuse of a government vehicle under this statute is beyond my understanding. Charge “Misuse of Government Property” and save yourself all this heartburn.] Haga@FELTG.com

Use and Misuse (and Beware March Madness)

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By Barbara Haga

Looking at the broader topic of misuse seemed a good segue this month, since we have spent a few months on credit card misuse.  As you can imagine, Federal employees have misused a lot of things.  Credit cards, vehicles, agency mail systems, and computers easily come to mind, but there are other cases regarding misuse of agency systems or the information contained in those systems, credentials, and more.

Remember, with misuse cases the required proof is that the “thing” was used for purposes other than those for which the property is made available or other than those authorized by law, rule, or regulation.  There is no requirement to prove intent.  So to paraphrase the famous Detective Joe Friday (and if you are too young to know who that is, my apologies), we “just need the facts, ma’am.”  For misuse to be sustained, we need to show that the thing belonged to the government, its value if it is a thing that is consumed or damaged, what rules controlled its use, and that the employee did something else with it or to it.

But, before we get in to that, it only seems prudent to mention a potential for misuse that it is present with us at this moment.

The NCAA Basketball Tournament

I am getting caught up in March Madness.  My team is doing really well this year and expected to be a first seed in the tournament.  Many years ago I remember taking leave to be able to get home to watch tournament games, but now with online access staying up on developments is much easier.  This year, I have watched them play on a TV in my office while I am “working.”  But, I am not a Federal employee anymore and there are no rules that prevent me from trying to do two things at once!  But, for those of you who spend time dealing with misconduct issues, this has the potential to create some problems in the workplace. (I’m not even going to touch telework!)

It’s not a small thing.  Government Executive ran an article entitled “Feds: Put That NCAA Bracket Away and Get Back to Work” on March 19, 2014, reminding employees of the issues related to gambling in the workplace.  Some agencies send reminders to employees to avoid this seasonal mental illness on premises and during work hours. 

There are a couple of MSPB decisions that mention the tournament.  An EPA Attorney-Advisor was removed for five charges, which included misuse of government equipment and misuse of official time, and lack of candor.  The misuse of the equipment involved e-mails of a sexually explicit nature and also e-mail relating to private legal work which were sent during work hours.  The amount of time utilized in those activities was apparently significant, but there was specific mention of the office basketball pool.  The employee argued that removal was improper, because other EPA employees and supervisors misused government time and equipment by participating in the annual pool.  The arbitrator upheld the removal.  The Federal Circuit, in a non-precedential decision, affirmed the arbitrator’s decision. Jones v. EPA, 2012-3167 (Fed. Cir. 2013)

One employee blew the whistle on his boss regarding an illegal tournament gambling pool that was conducted using government resources.  Once again, these were not low-level employees but Economists.  The allegations regarding the pool were a small piece in a much larger whistleblower case, but this scenario does point out that not everyone is caught up in March Madness and some of those folks could report the activity to the IG as this employee did.  This whistleblower case went to the Federal Circuit and the court vacated the decision to sustain the removal and remanded it to the Board.  Whitmore v. DoL, 680 F.3d 1353 (Fed. Cir. 2012).

Credentials and Misuse of Agency Information System

The case of Stanley Mungaray is an interesting one in that he was in trouble for misuse of more than one thing.  He was a GS-14 Customs and Border Patrol (CBP) International Officer in the Office of International Affairs at their headquarters. Talk about being held to a higher standard – he was in the enforcement business, working in Internal Affairs in their headquarters organization.  His appeal is actually an involuntary retirement appeal since he retired prior to the removal action being effected.  When the Board reviews this type of involuntary separation case part of the analysis is whether the agency had reasonable grounds for threatening to take the adverse action, so the decision goes into detail about the charges.

Mungaray was charged with misuse of the Treasury Enforcement Communications System/Automated Targeting System to perform unauthorized searches on his wife and his son-in-law.  These are systems that keep track of individuals entering and exiting the country and of individuals involved in or suspected of being involved in crimes, and are used in targeting, identifying, and preventing potential terrorists and terrorist weapons from entering the United States.  In addition to these charges, there was a lack of candor charge because when interviewed by Internal Affairs about the inquiries conducted using his unique log-in he said he didn’t believe he had searched records on his wife and denied making a search on his son-in-law.

The other misuse issues involved use of his credentials.  There were two different charges.  The first involved using his badge to get out of a traffic ticket.  He was pulled over in Loudon County, an area northwest of Washington, DC.  While retrieving his registration information, he displayed his government badge to the officer:

He did not receive a citation for speeding as a result of displaying his badge, but the Loudoun County Sheriff’s Department has a practice to request the phone number of the supervisor of any law enforcement officer found to be in violation of local traffic laws and, as a condition of not being cited, to notify the offending driver’s supervisor of the traffic violation. Nevertheless, it is a misuse of position for a CBP employee to identify himself as a law enforcement officer as a means to avoid being ticketed, even for routine traffic stops.

Apparently Loudon County followed through on their policy because the decision mentions “record evidence” of Mungaray’s use of his credentials in this situation.

The fourth infraction while not specifically a misuse charge is a close cousin.  The charge was failure to safeguard those same credentials.  He lost them in a grocery store, but did not report the loss for four days, which violated the agency’s policy.

Mungaray didn’t reply to the proposed removal and did not produce any evidence that the charges were unfounded and thus the Administrative Judge found no jurisdiction over the claim of involuntary separation.  Mungaray v. DHS, DC-0752-15-0622-I-1 (2015)(NP). Haga@FELTG.com

Discipline in the Public View – Credit Card Misuse VI

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By Barbara Haga

Last month’s column addressed travel and purchase card misuse.  We continue with a discussion of the OMB guidance regarding dealing with instances of misuse.    

OMB’s Opinion

Appendix B of OMB Circular A-123 entitled Improving the Management of Government Charge Card Programs (January 2009) sets out requirements for managing purchase and travel card programs.  Paragraph 3 includes requirements for training for card holders and approving officials; paragraph 4.3 mandates that agencies to establish risk management strategies including 1) closely monitoring delinquency reports from charge card vendors; 2) contacting appropriate personnel to ensure that delinquent payments are addressed and corrective actions are taken to prevent further occurrences; and 3) establishing controls, policies, and practices for ensuring appropriate charge card and convenience check usage and oversight of payment delinquencies, fraud, misuse, or abuse. 

Paragraph 4.5 address the actions agencies regarding delinquent card holders.  These include suspending the accounts as well as instructing the charge card vendor to cancel cards, initiate collection efforts, notify credit bureaus, etc. The guidance also suggests imposing disciplinary action deemed appropriate by the agency. Paragraph 4.9 makes a similar recommendation regarding purchase card holders. These suggestions seem reasonable, but somewhere between these paragraphs and Attachment 5 on Best Practices the recommended actions expanded to this list:

When initiating administrative or disciplinary actions for card misuse and/or for instances when account delinquency is discovered, CHARGE CARD MANAGERS SHOULD (my ALL CAPS), in addition to consultation with agency human resources professionals:

• Initiate verbal counseling and warning;

• Provide written warning;

• Suspend or revoke charge card privileges;

• Suspend or revoke employee security clearance;

• Include misuse or delinquency occurrence in employee performance evaluations;

• Suspend or terminate employment;

• Ensure consistent enforcement of penalties; and

• Publish actions taken by the agency for misuse of charge cards.

What are the Issues with this Guidance?

Thankfully OMB suggested that charge card program managers coordinate with the HR as part of these actions, but I am afraid that is not going to overcome some of the fundamental problems.  First, authority to take disciplinary action is normally delegated through the chain of command of an organization, so the proposing and deciding officials are typically supervisors and higher level managers in that employee’s reporting chain.  An agency might delegate authority for all of a certain type of action such as charge card abuse to one official, but in all of my review of cases related to charge card use I did not find a decision where that was noted. 

Some of the guidance regarding the charge card manager’s authority is reasonable.  Suspending or revoking charge card privileges is what one would expect the card manager to do in such circumstances.  Other parts of the guidance are problematic.  The list of actions states that charge card managers should, in consultation with agency human resources professionals, initiate verbal counseling and warning, provide written warning, suspend or terminate employment, and ensure consistent enforcement of penalties.  Since charge card managers would not be in the employee’s reporting chain in most cases, it is easy to anticipate where problems could arise.  Proposing and deciding officials are being told what to do so that they did not have authority to truly decide the matter (a la, security clearance denial/revocation cases).  One can imagine what the current MSPB would do with that kind of scenario. 

Speaking of security clearances, the guidance provides that charge card officials should suspend or revoke employee security clearances.  Reporting the information to security officials where card holders also are required to have security clearances would make sense since matters of debt and financial insolvency are issues in the granting of clearances, but I don’t know of a combination charge card program manager/security manager job in any agency.

Which recommendation makes the least sense?

Including occurrence of misuse or delinquency in employee performance evaluations is the suggestion that gives me the most heartburn. 

In June 2013 in one of my earliest FELTG columns I wrote about mixing up disciplinary matters in performance plans.  What I said then still makes sense. 

Disciplinary infractions should be dealt with in the discipline system, and performance problems should be dealt with performance procedures.   Procedures for dealing with poor performance are designed to teach and coach and develop skills and abilities so that the employee can meet the critical functions of the job.  Discipline is designed to correct misconduct – infractions, failure to follow rules and procedures, etc.

Misusing a credit card to me is a very clear example of failing to follow rules and procedures.  Would it make sense for an agency to give an opportunity period when Gerald uses his government travel card to take more cash advances than what is authorized for the period of travel?  With that logic if Gerald didn’t do it again during the opportunity period, there would be no action, right?   What if Gerald was disciplined for credit card misuse in the third month of the appraisal cycle and didn’t commit any further misconduct for the remaining nine months.  Should Gerald be rated at below Fully Successful?   

What to Expect

This is a topic that is getting attention. Just this week an article was issued by the Daily Signal, a publication of the Heritage Foundation, with the eye-catching title Government Employees Spent Almost $1 Million in Taxpayer Money at Casinos (http://dailysignal.com/2016/02/08/government-employees-spent-almost-1-million-in-taxpayer-money-at-casinos/). The article notes that the Senate passed legislation trying to put more teeth into credit card program management through the Saving Federal Dollars Through Better Use of Government Purchase and Travel Cards Act of 2015 (S. 1616) in December.  The article suggests that if money is being wasted on such expenditures perhaps budgets could be reduced as part of larger cost-cutting measures. 

The legislation was referred to the House Committee on Oversight and Government Reform on December 17th.  Govtrack.us says the bill has a 45% chance of passing.  The Committee is busy with trying to control administrative leave right now, but I think this will be an easy segue for them.  Haga@FELTG.com

Discipline in the Public View – Credit Card Misuse V

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By Barbara Haga

Now that the holidays are over and credit card bills are arriving in mailboxes around the country, it seems like a good time to return to looking at credit card issues in Federal agencies.

“Saving Federal Dollars” Closer to Reality

I mentioned in the first credit card misuse column published in August 2015 that another bill designed to ferret out misuse in the Federal government had been introduced in Congress. That bill, Saving Federal Dollars Through Better Use of Government Purchase and Travel Cards Act of 2015 (S.1616), was passed by the Senate on December 16, 2015. It’s probably not exactly what most Federal employees would have included on their lists for Santa, but the Senate delivered something new for agencies to play with anyway.

This version of the bill is different than what was originally proposed. The original bill would have set up a specific office in GSA to manage these efforts but that was eliminated; however, the Senate version charges GSA with working with OMB on creating data analytics for managing both travel and purchase card programs across government.  Agencies will have a requirement to review questionable transaction reports issued by credit card companies. There would be an interagency group that would meet to look at these matters and, of course, there are required reports to Congress a year after enactment for agencies, too.

Purchase Cards

While most card-misuse cases that come across the average Employee Relations practitioner’s desk will involve an employee’s travel card, purchase cards can also be misused. Congress has that in their sights since the “Saving Federal Dollars” specifically covers both types of cards. The case of Sedita v. Department of the Army (1998) is a case in point.

Sedita was removed from the position of Facility Management Officer, GS-13 in 1998. His job required him to monitor the work of contractors and to certify to work performance so that payments could be issued for work completed. He was also responsible for purchasing items for facilities under his care using a government commercial credit card. The limit for purchases on the card was $2500 at that time. The relevant guidance on the use of the card specifically prohibited splitting large purchases into smaller purchases to circumvent those monetary limitations.

Sedita’s removal was based on charges related to both aspects of his job, but those relevant here are related to his use of his credit card to split purchases. One specification covered his use of the card to purchase and install one dehumidifier each for sixteen different agency locations for a total amount of $10,944.00. He originally submitted the request to the procurement office to contract for the purchase and installation of sixteen dehumidifiers, but it was near the end of the fiscal year and procurement office responded that there was not enough time to process the contract before the end of the year. Sedita alleged that he was advised to split the order by the Contract Specialist, but no evidence was produced on that point. Sedita purchased the same items and services from the same contractor and thus violated the credit card processing Standard Operating Procedure.

Another specification involved more work for the same contractor. That job involved work to convert a large office into four smaller ones. The total value of the work was $7,920. Sedita purchased the work with four separate credit card purchases. He contended that the installation of each wall and door was a separate job for which a separate invoice was prepared. The CAJ did not accept that explanation, finding that Sedita knew or should have known about this limitation because he was an experienced Facility Management Officer. It was noted that he might have been concerned that the funds for this work would have been lost if unused before the end of the fiscal year, but that did not excuse his violation of the purchase card procedures.

Travel Cards

Have you ever pulled out the wrong credit card and used your government card for a personal purchase? You don’t really have to answer that. Others have said they did, and indeed it has come up in more than one credit card misuse case. One was Callaway v. DoD, DC-0752-13-0004-I-1 (2013), which I covered in the October newsletter.

Another employee testified that she fell victim to this same failure to distinguish which card she was actually using in McFall and USDA, APHIS, Plant Protection and Quarantine, Federal Arbitration 008-50341, 108 LRP 37192 (2008). McFall, a Plant Health Safeguarding Specialist, was suspended for 14 days for misuse of the government travel card. She stated that she normally kept her travel card in the office safe but for some unknown reason had not returned it there after a prior trip. She used her government card to purchase four meals while not on travel and also purchased several items at Walmart using the card. The total value of the charges was less than $500.

She also argued that she had not had adequate training on use of the credit card and was not aware of a zero tolerance policy on misuse.

Arbitrator Hecht sustained the suspension. He concluded that McFall’s failure to take the usual precautions to safeguard the government card and separate it from her personal card more likely contributed to the misuse than any lack of training. He found her excuse of confusing cards possible on one occasion, but explained that it was her responsibility to ensure that would not happen on four occasions.

One thing that caught my eye in this decision was the guidance introduced in the record for dealing with misuse situations. The decision quotes OMB Circular A-123 indicating that instances of misuse should be included in performance evaluations. The Circular was revised in January 2009, but maintains the same language (OMB Circular A-123, Appendix B, Attachment 5). It states:

When initiating administrative or disciplinary actions for card misuse and/or for instances when account delinquency is discovered, charge card managers should, in addition to consultation with agency human resources professionals:

  • Initiate verbal counseling and warning;
  • Provide written warning;
  • Suspend or revoke charge card privileges;
  • Suspend or revoke employee security clearance;
  • Include misuse or delinquency occurrence in employee performance evaluations;
  • Suspend or terminate employment;
  • Ensure consistent enforcement of penalties; and
  • Publish actions taken by the agency for misuse of charge cards.

This list is such a mixed up jumble of things I wish they had never written down that I don’t know where to start. So, we will pick up here next month! Haga@FELTG.com

[Editor’s Note: OMB may know numbers, but they don’t know the federal performance appraisal program. If you are going to consider card misuse when assigning the employee’s annual performance appraisal, you’d darned sure better have something about using cards when you established the original performance plan. Otherwise, you can’t just insert it at the end of the appraisal year because OMB thought it was a good idea. And if you include it in the original performance plan, keep in mind that you are taking something that normally would be a MISCONDUCT issue and incorporating it into a possible PERFORMANCE case. There’s nothing that specifically prohibits that, but some agencies avoid mixing misconduct with performance for policy reasons.]